Revisiting TCPA: Staying Compliant While Addressing the Challenges and Complexities. Wednesday, March 26, 9:00 9:40am Mirage Hotel, Las Vegas, NV

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1 Revisiting TCPA: Staying Compliant While Addressing the Challenges and Complexities Wednesday, March 26, 9:00 9:40am Mirage Hotel, Las Vegas, NV 1

2 Moderator Rachel Hirsch Senior Associate, Ifrah PLLC 2

3 Panelists Glenn Houck Co-Founder, LeadQual John Trionfo Senior VP, Operations, LeadiD Alex Baydin CEO, PerformLine 3

4 October 16, 2013 Rule Changes To Telephone Consumer Protection Act NEW MOBILE RULE: Marketers Must Receive Prior Express Written Consent From Consumers Before Placing Autodialed Calls/Texts Or Generating Pre-Recorded Messages To Cell Phones For Telemarketing Purposes. NEW LANDLINE RULE: Marketers Must Obtain Prior Express Written Consent Before Generating Pre-Recorded Telemarketing Messages to Consumers Landlines. 4

5 October 16, 2013 Rule Changes To Telephone Consumer Protection Act Live (Non-Autodialer) Telemarketing Calls To Wireless Numbers Do Not Require Consent Live (Non-Autodialer) Informational Calls To Wireless Numbers Do Not Require Consent Mobile Exceptions Landline Exceptions Live Telemarketing (With Or Without Autodialer) Calls To Residential Lines Generally Do Not Require Consent Live Informational Calls (With Or Without Autodialer) To Residential Lines Do Not Require Consent REMEMBER! Scrub DNC Lists And Obtain EBR Consent 5

6 Key Legal Challenges Under TCPA Rule Changes Automatic Telephone Dialing Systems Does The System Have The Capacity To: Produce, Store, And Call Telephone Numbers Using A Random Or Sequential Number Generator? Dial These Numbers Without Human Intervention? Did The System Have The Capacity At The Time Of The Alleged Violation? Consent/Revocation Was Consent Given? Must Be Unambiguous i.e. Clear and Conspicuous May Not Be A Condition Of Purchase Requires Consumer To Designate A Phone Number What Was The Scope of Consent? Which Seller Was Identified? Who Did Seller Have Permission to Call? Which Numbers Did Seller Have Permission To Call? Was Consent Revoked? Were There Opt-Out Mechanisms Post-Consent? Was Consumer Placed On Internal Do Not Call List? Were Records of Consent Maintained For 5 Years? 6

7 Key Business Challenges Under TCPA Rule Changes Revised Website Consent Language Increased Oversight Of Outside Contractors And Lead Aggregators Increased Record Maintenance New Business Relationships Improved Customer Service Added Scrutiny By Private Plaintiffs 7

8 7M LeadiD Visual Playbacks Stored 8

9 83% of Consumers provide Consent : 8.9% DO NOT 9

10 83% of leads now Match an approved disclosure 10

11 Speed to Lead Lead Conversion Reductions o A five minute delay in response to leads can reduce the value of the lead by nearly 25%. If a lead is called in more than 3 hours, conversion rates can drop more than 50% 11

12 Q&T Services: TCPA Implications Definitions oauto-dialer: Any automatic telephone dialing system, that has the capacity to produce, store and call telephone numbers using a random or sequential number generator. oestablished Business Relationship: Prior relationship formed by two-way communication between the consumer and business that has not previously been terminated by either party. oexpress Consent: Knowingly releasing one s phone number to a company, absent instructions not to be called for telemarketing purposes. 12

13 Q&T Services: TCPA Implications (continued) Update to TCPA: Beginning October 16, 2013, before making a telemarketing call through an autodialer, telemarketers must obtain prior express written consent. ofor leads called using an auto-dialer and no prior express written consent exists, only two options are available for leads that have a mobile phone: ooption A: Refrain from calling. Not a great option since these become lost opportunities, yet still incur the added expense to determine if consent exists on the leads. ooption B: Do not use an auto-dialer at all. LeadQual does not utilize an auto-dialer. Instead, our Agents qualify leads by making calls through a customized proprietary system, designed and built without the capacity to be an auto-dialer. 13

14 LeadQual Compliance With TCPA Changes oleadqual does not possess the Capacity to AutoDial, but is able to respond to Leads in Under 30 seconds opatton Boggs Legal Opinion - Opinion process includes 4 Patton Boggs Partners, and was written by Monica Desai, Partner, who spent 11 years at the FCC, including 2 years leading the team that creates TCPA policy ocompliance Point Opinion - Compliance Point, the leading telemarketing compliance firm in the Leads industry reviewed and agreed with Patton Boggs opinion 14

15 TCPA Compliance: March 2014 Study Reveals 46% Webpages Not Meeting FCC Rules PerformLine analyzed a wide sampling of websites to see how compliant marketers were with the new TCPA rules. Overall Summary Pages Passing All Checks Fail for EITHER disclaimer issues or no consent option 54% Fail for BOTH disclaimer issues and no consent 30% Fail for BOTH disclaimer issues and no consent 16% 15

16 6-Month Comparison of Data ocomparison of October and March study data reveals: 16

17 Observations (continued) Those Who Actively Monitor For TCPA Compliance vs. Those Who Don t Compliance Levels Those actively monitoring for TCPA compliance Vs Those not actively monitoring 17

18 Hurdles not obstacles othe PerformMatch TCPA Toolkit automatically tracks consent language and the option for express written consent on both webpages and in call centers to minimize the risk of non-compliant violations and possible litigation. 18

19 Rachel Hirsch, Ifrah Law Glenn Houck. LeadQual John Trionfo, LeadID Alex Baydin, PerformLine 19